Congress is moving to force the Pentagon to violate a nuclear arms treaty with Russia — in yet another effort to box in President Donald Trump on relations with Moscow.
Language in key defense bills in both the House and Senate would require the military to begin developing medium-range missiles banned by a 1987 treaty that Ronald Reagan negotiated with Soviet leader Mikhail Gorbachev during the twilight years of the Cold War.
Supporters say the move is necessary because Russian President Vladimir Putin has violated the pact. But opponents fear it could increase the chances of a nuclear confrontation at a time when relations between the two nations are at a post-Cold War low.
The legislation is also likely to stir up new friction between lawmakers and Trump, who has already accused Congress of illegally meddling in his dealings with Russia. Trump blasted Congress on Wednesday for including “clearly unconstitutional provisions” in a bipartisan bill imposing new sanctions on Putin’s regime — legislation he said he nonetheless signed "for the sake of national unity."
The OMB has slammed the House push for the new weapon, saying it “unhelpfully ties the Administration to a specific missile system, which would limit potential military response options."
The administration "is currently developing an integrated diplomatic, military, and economic response strategy that maximizes pressure on Russia,” OMB added in a recent statement.
Trump is also getting a rare assist from congressional Democrats alarmed by the potential for a newly stoked nuclear arms race. They include Sen. Patrick Leahy of Vermont, who voted to ratify the Intermediate-Range Nuclear Forces Treaty in 1988.
"Now, as then, short and medium range nuclear missiles have no deterrent value, while making it more likely for miscalculations to lead to the unthinkable," Leahy, asked about the new provisions, told POLITICO in a statement.
Legal experts are also criticizing the legislation as congressional overreach, saying the Senate can only ratify treaties and the president alone can negotiate or pull out of them. The House has no role whatsoever in approving treaties.
The House’s language, included in the National Defense Authorization Act passed last month, would create a program for developing a land-based missile that is banned by the INF Treaty. The Senate will soon debate a similar provision in its version of the defense policy bill, which would set aside $65 million and also require the military to reintroduce a missile capable of traveling between 500 and 5,500 kilometers — a weapon that both Cold War rivals phased out three decades ago.
The House language specifically calls for a conventional missile, not a nuclear one, but the treaty itself — which was designed to limit weapons that could carry an atomic warhead — does not differentiate between the two.
“It exceeds the power of Congress,” said Mallory Stewart, who served as deputy assistant secretary of State in the Bureau of Arms Control, Verification and Compliance until earlier this year. “It is ignoring a division of power that has been recognized since the beginning of our Constitution.”
"It is unclear whether it is even constitutional," agreed Alexandra Bell, another former State Department official.
The NSC declined to answer questions about the legality of the missile legislation. A spokeswoman said in a statement that the administration "is currently undertaking an extensive review of our policy" and will "assess the potential security implications for the United States, our allies and partners, and to develop potential response options."
Supporters of the provisions — including Republican Sen. Tom Cotton of Arkansas — assert that Russia’s recent deployment of an intermediate-range missile in violation of the treaty requires the U.S. to respond in kind.
Cotton, in an address to the Center for Strategic and International Studies last month, also argued that the congressional action would not violate the treaty.
"Under the treaty, we cannot test, produce or possess land-based intermediate-range missiles," he said. "But we can conduct research on how to improve other missiles, such as extending their range or adapting them for different environments. For instance, we could develop a land-based version of the Tomahawk, which we usually launch from Navy ships. This kind of research stays well within the four corners of the INF Treaty, but also prepares us and our allies in case the treaty becomes obsolete."
The military value of the type of weapon Congress is calling for is also very much in doubt.
Air Force Gen. Paul Selva, the vice chairman of the Joint Chiefs of Staff, told Cotton in a Senate Armed Services Committee hearing in July that the Russian moves were not a security threat.
"Given the location of the specific missile and the deployment, they don’t gain any advantage in Europe," Selva said.
Cotton also asserted that because other nations such as China are not party to the treaty, they could have a military advantage over the United States and its allies — something Selva pushed back on.
Selva noted in the hearing that that the INF Treaty covers only land-based missiles, not those fired from aircraft or ships at sea. "I believe we can assert that the deployment of missile systems on aircraft and ships will allow us to hold those [Chinese] targets at risk."
Cotton’s office did not respond to a request for comment.
For others, the military value of such a weapon is beside the point. They warn that taking steps to develop a weapon outlawed by the INF Treaty would be unlikely to compel the Russians to adhere to it, and could even lead to the same type of nuclear arms race that the treaty was designed to avoid.
"Both provisions would authorize funding for a weapon system that lays the groundwork for a new nuclear weapon to be deployed in Europe," said Daryl Kimball, executive director of the Arms Control Association. "We have argued that kind of R&D program is not in any way going to modify Russia’s behavior and it gives them an convenient excuse" to develop more weapons.
Kimball and others also contend that no European ally would likely want to host such a weapon.
Several congressional aides said that efforts are underway to try to water down the provisions before the Senate and House have to pass a common version of the Defense Authorization Act.
One proposal under consideration by Sen. Elizabeth Warren, a Massachusetts Democrat on the Armed Services panel, would require the Pentagon to first conduct an analysis on whether a new intermediate-range missile is needed before any funding could be released to develop one, they said.
Warren’s office did not respond to several requests for comment.
But there is general agreement in the arms control community that the INF Treaty is worth saving despite the Russian violations.
A group of international experts earlier this year proposed a series of steps to compel Russia to comply.
"The INF Treaty is fundamental to European security," they wrote. "If the treaty collapses, it would further weaken trust between the West and Russia and undermine the entire regime of nuclear arms control between the United States and Russia. This would have unpredictable strategic and political consequences for West-Russia relations. The INF Treaty should be preserved."
Former Democratic Rep. John Tierney, who chaired a national security oversight panel, contends that preserving arms control pacts with Russia needs to be a bigger priority for the Trump administration despite the differences between the two nations.
"These are existential issues," said Tierney, now executive director of the Center for Arms Control and Non-Proliferation. "They need to be separated out from the others. Reagan understood that. They need to be addressed even when you are not getting along. It was done in the past with Russia and should be done now."